July 19, 2019

Archives for February 27, 2012

Tenth Circuit: Court Erred by Inviting Petitioner to Suggest Guideline Range of His Sentence, But Did Not Seriously Affect Fairness or Integrity of Judicial Proceeding

The Tenth Circuit Court of Appeals published its opinion in United States v. Mendoza-Lopez on Friday, February 24, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner appeals his sentence, arguing the district court denied him his right of allocution. Applying the plain error standard of review, the Court concluded that “the district court erred by inviting [Petitioner] to speak only with respect to where within the Guidelines range the court should sentence him. This error, however, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.”

Tenth Circuit: Jurisdictional Element of Child Pornography Statutes May Be Satisfied if Substantive Content of Image Has Travelled in Interstate or Foreign Commerce

The Tenth Circuit Court of Appeals published its opinions in United States v. Sturm and United States v. Dayton on Friday, February 24, 2012.

Petitioners were convicted of distributing, receiving, and possessing child pornography. Both petitioners argue that the government “cannot prove the interstate commerce element of the crimes charged unless it presents evidence the specific digital images they possessed, received, and/or distributed traveled in interstate or foreign commerce.” The Court disagreed. “[T]he [g]overnment may satisfy the jurisdictional element of each of the statutes at issue if it presents evidence that the substantive content of the images has, at some point, traveled in interstate or foreign commerce.”

Tenth Circuit: Unpublished Opinions, 2/24/12

On Friday, February 24, 2012, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

Unpublished

Navigato v. SJ Restaurants, LLC

Evans v. The Bank of New York Trust Co.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 12-102: Repealing the Crime of Criminal Libel

On January 31, 2012, Sen. Greg Brophy and Rep. B.J. Nikkel introduced SB 12-102 – Concerning the Repeal of the Crime of Criminal Libel. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the crime of criminal libel, effective September 1, 2012. On February 14, the Judiciary Committee referred the unamended bill to the full Senate for consideration on 2nd Reading. On Friday, February 17, the Senate passed the bill on 2nd Reading.

Since this summary, the bill was introduced in the House and assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

SB 12-093: Requiring Hospitals to Provide Notice When Services Denied Due to Religious Reasons

On January 19, 2012, Sen. Morgan Carroll and Rep. Cristana Duran introduced SB 12-093 – Concerning a Requirement that a Licensed Hospital Provide Notice to Patients of Any Service Not Provided By the Hospital Because of Moral Convictions Based on Religious Beliefs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires hospitals licensed in Colorado to provide notice in a manner specified by the department of public health and environment of all services that the hospital refuses to provide because of religious beliefs or moral convictions. The bill requires the notice to inform patients of their right to obtain any service not provided by the hospital because of religious beliefs or moral convictions from another hospital that does provide the service. Requires the notice to be made available prior to or at admission of the patient or as soon after admission as practicable. On February 16, the Health and Human Services Committee referred the unamended bill to the full Senate for consideration on 2nd Reading.

Since this summary, the 2nd Reading was laid over daily until February 24.

Summaries of other featured bills can be found here.

SB 12-090: Restoring Coverage of Circumcision Under Medicaid

On January 19, 2012, Sen. Joyce Foster and Rep. Lois Court introduced SB 12-058 – Concerning Restoring Coverage for Circumcision of Males Under Medicaid. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill includes male circumcision as a physician’s service under Colorado’s Medicaid program. On February 2, the Health and Human Services Committee referred the bill to the Appropriations Committee.

Summaries of other featured bills can be found here.

 

SB 12-087: Changing the Start of the Interest Period for Property Taxes Erroneously Collected

On January 19, 2012, Sen. Joyce Foster introduced SB 12-087 – Concerning the Period Marking the Commencement of the Accrual of Interest on the Refund of Property Taxes Erroneously Collected. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill applies to interest imposed on property taxes illegally or erroneously levied and collected. Under current law, interest on such refunded moneys accrues only from the date payment of taxes and delinquent interest on such payment was received by the county treasurer from the taxpayer except as provided in specified circumstances. Under the bill, interest on the refunded moneys accrues from the later of the date a complete abatement petition is filed with the board of county commissioners or the date the taxes are paid. On February 16, the Local Government Committee unanimously approved the bill and moved the bill to the Senate Consent Calendar for 2nd Reading.

Since this summary, the bill passed the Second Reading.

Summaries of other featured bills can be found here.

SB 12-071: Requiring a Lender to Make Great Efforts to Avoid Foreclosure

On January 19, 2012, Sen. Angela Giron and Rep. Cristana Duran introduced SB 12-071 – Concerning a Requirement to Pursue Available Loan Modification Remedies Before Foreclosing on Residential Real Property. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the holder of an evidence of debt to pursue modification remedies before foreclosing on a residential property. Before initiating or completing the process of foreclosing on residential real property containing 4 or fewer dwelling units, the bill requires holders of an evidence of debt to make and fully document its efforts to:

  • Contact the borrower directly;
  • Negotiate in good faith with the borrower in an effort to effectuate a cure for default rather than move directly into the foreclosure process;
  • Fully assess the eligibility of the borrower, the property, and the loan for any available public or private loan modification programs or other alternatives to foreclosure;
  • Communicate with, and inform, the borrower about impending deadlines and the consequences of missing them at every major step of the foreclosure process;
  • Carry the burden of proof in court proceedings regarding the holder’s compliance with procedural as well as substantive requirements before obtaining an order authorizing sale of the property under rule 120 in the Colorado rules of civil procedure; and
  • Abide by the terms of any offer of modification it makes, if the borrower signs and returns documents containing those terms.

The bill is assigned to the Judiciary Committee; a hearing date is not listed on the printed calendar.

Summaries of other featured bills can be found here.

SB 12-070: Describing Obligations of Landlords and Tenants Under Uniform Residential Landlord and Tenant Act

On January 19, 2012, Sen. Irene Aguilar introduced SB 12-070 – Concerning Residential Landlords and Tenants, And, In Connection Therewith, Enacting the “Uniform Residential Landlord and Tenant Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enacts the “Uniform Residential Landlord and Tenant Act”. The Act includes, among other things, provisions related to:

  • A statement of purpose and rules of construction;
  • Exclusions from the application of the Act;
  • An obligation of good faith;
  • The effect of an unsigned or undelivered rental agreement;
  • Prohibited provisions in rental agreements;
  • A landlord’s obligation to make disclosures, deliver possession of a dwelling unit, and maintain a premises;
  • A tenant’s obligation to maintain a dwelling unit, to allow a landlord access to a dwelling unit, and to use and occupy a dwelling unit;
  • Rules and regulations adopted by a landlord;
  • A tenant’s remedies for a landlord’s noncompliance with his or her obligations;
  • A prohibition on retaliatory conduct; and
  • The repeal of existing inconsistent law relating to landlord and tenant relations

The bill does not include a provision related to security deposits that was approved by the national conference of commissioners on uniform state laws. The bill requires the official comments of the national conference of commissioners on uniform state laws to be published along with the Act as nonstatutory matter. The bill also confers authority on a county court and a small claims court, respectively, to grant injunctive relief as permitted under the Act, and the bill modifies the current deadlines for giving notice to quit a tenancy in order to be consistent with the deadlines in the Act. The bill modifies the existing security deposit law by:

  • Eliminating the requirement that a tenant must give notice to a landlord of his intention to file legal proceedings a minimum of 7 days prior to filing said action;
  • Limiting the total security deposit that a landlord demand or receive security to one month periodic rent; and
  • Requiring a landlord in all instances to return a security deposit to a tenant within one month after the termination of a lease or surrender and acceptance of the premises, whichever occurs last, by eliminating the ability of the parties to specify in the lease agreement a longer period of time, up to 60 days.

Note: The sponsor of the bill has hosted several stakeholder meetings and is considering limiting the bill to amendments to the warranty of habitability provisions of the landlord tenant laws. The Senate Judiciary Committee will hear the bill on Wednesday, February 22 at 1:30 p.m.

Summaries of other featured bills can be found here.